The five flaws of Scotland’s government

This week Nicola Sturgeon will try, appearing before a Holyrood committee, to rebut the devastating allegations launched at her last week by Alex Salmond, her predecessor as leader of the Scottish National Party, her former mentor, and now the biggest threat to her political survival.

Sturgeon also faces a separate inquiry by an independent QC into whether she misled the Scottish Parliament, and if so, whether she did so inadvertently or knowingly. If the latter, there will be pressure for her to resign, for breaching the ministerial code. There is no figure in the SNP who commands the public support she does, nor who has played such a role in the movement for independence. It is no exaggeration to say that if she goes, hopes of a second independence referendum may go with her.

But whatever the outcome, Salmond has pointed rightly to serious weaknesses of Scotland’s government. These are structural weaknesses, quite aside from questions about the SNP’s record in office, for instance, in health, education or policing (and the IfG will soon publish on this). These flaws need to be rectified whether or not Scotland achieves independence. Indeed, the risk for the health of its government is greatest in what is the most likely outcome: that Sturgeon stays.

Boundaries between the SNP, the Scottish government and the Scottish civil service are blurred

The clash between Salmond and Sturgeon is ferociously intricate in detail but important in its implications. The core is about Sturgeon’s handling of a botched 2018 government probe into allegations of sexual misconduct against Salmond when he was first minister. Salmond took the government to court and in 2019 it was agreed that the probe had been unlawful and tainted by apparent bias. In a separate criminal trial last year, he was acquitted of all charges of sexual offences.

The picture that has emerged over almost three years is one where boundaries between the Scottish National Party, the government it has led for 14 years (much of that with a majority), and supposedly impartial civil servants and legal officers were seriously blurred. The biggest symbol of that is that Sturgeon’s husband Peter Murrell, who lives with her in Bute House, the residence of the first minister, is also chief executive of the SNP. There is no breach of rules in that but it strengthens the picture that the SNP, after such a spell at the head of Scotland’s government, is failing to make proper distinctions between party and business of the state.

Of course, the Johnson government has been accused of cronyism in its coronavirus appointments and procurement, showing how easily – especially in crisis – governments may find that proper processes and boundaries are inconvenient. But the examples that have emerged in Scotland point to a government badly needing to rediscover those principles and practices. Among many points in his hours of testimony, Salmond pointed to Sturgeon’s use of a coronavirus press conference to express sympathy for the women who had made allegations of harassment against him, adding that this also showed lack of respect for the judicial domain given that he had been acquitted of all charges.

The role of the Lord Advocate is controversial

The clash has also raised questions about the role of the Lord Advocate. The post, currently held by James Wolffe QC, is the senior Scottish law officer. He or she is the principal legal adviser to the Scottish government and represents it in civil proceedings, also sitting in Cabinet. But the post also entails being head of the Crown Office and Procurator Fiscal Office, heading up the criminal prosecution system and representing the public in some areas.

The dual role as prosecutor and politician has been controversial since the start of devolution in 1999. There are competing demands that the Lord Advocate be independent as a prosecutor yet politically accountable as a legal adviser. Salmond himself decided to reduce the frequency with which the Lord Advocate sat in cabinet but recently Wolffe has attended a majority of those meetings, a point which Scottish Conservatives have challenged.

Formal separation of the two roles, overturning five centuries of tradition, would arguably require legislation in Westminster. A simpler solution might be to stop including the Lord Advocate within the cabinet. Either way, the Scottish Parliament is putting intense pressure on Wolffe to account for his decisions in the Salmond case.

The head of the Scottish civil service has been criticised

Leslie Evans, permanent secretary of the civil service, has had to apologise for the government’s handling of the probe – but attributed its failure to just one procedural error. That was one, though, that the judicial review called by Salmond decided constituted bias. She has been criticised for ploughing on with the flawed legal action. Members of the Scottish Parliament have found her evidence patchy.

There has been a lack of transparency

There are many points when the government’s actions have seemed to fall short of desirable standards of transparency and record keeping. Sturgeon will be quizzed this week on whether she knew about the allegations against Salmond earlier than she told parliament. The government has also been accused of lack of appropriate confidentiality, allegedly leaking the names of some victims.

The Scottish Parliament has not performed well

Holyrood has not covered itself in glory in this episode. Its procedures of inquiry have seemed improvised. So have its rules of evidence; large chunks of Salmond’s statement were redacted after having been published for hours, after a challenge by the Crown Office that publication could amount to contempt of court. Nonetheless, this is its chance to show that it can do better. The test will be the clarity with which it questions Sturgeon on whether she broke the ministerial code, and if so, what it then chooses to do.

The case in Scotland is about much more than an SNP civil war

For all the tortuous details of these interlinked allegations and rebuttals, the case matters. It is not just about civil war in the SNP, and what seems like a fight to the political death between the two leaders who have brought it to prominence. It matters because it has exposed the ways in which the practices and processes of Scotland’s government look inadequate for a modern democracy. To say that those are the signs of its comparative youth would be too generous. The lack of boundaries and sense of proper procedure that this clash has revealed are also failings to which parties in power for a long time are prone. In Westminster, Boris Johnson’s government has also shown itself uninterested in the importance of upholding adherence to the the ministerial code.

The most likely outcome is that Sturgeon stays in post, even if damaged. There are no obvious successors; she is not only the supreme politician in Scotland but has a charisma and force that outshine most of Westminster. Polls show that support for independence has slipped a bit – though only to 50% – as this clash has played out. The question of whether Scotland can given itself a robust and fair government, open to scrutiny, is even more important while independence remains a real possibility.